Thanks to the Endangered Species Act, we can now add grizzly bears to the list of those who can get away with murder under our criminal justice system. That is effectively the rule decided in U.S. Fish and Wildlife Service v. Shuler. Handed down in March by an Interior Department administrative law judge and defended this month by the department counsel, the Shuler decision establishes a chilling precedent in the Endangered Species Act's long history of ursine usurpations.

It all began in 1986, when John Shuler and his wife bought a piece of land near Dupuyer, Mont., stocked it with sheep and began life on their new ranch. In the summer of 1989, the Shulers lost approximately $1,200 worth of sheep to ursus arctos horibilis — more commonly known as the grizzly bear. The grizzly has been listed as "threatened" under the Endangered Species, Act since 1975; the act expressly prohibits private citizens from "taking" listed species. According to the act, to "take" means to "harm, harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Thus, under the law, the Shulers could do nothing to stop the marauding bears.

Mr. Shuler discovered the first dead sheep on Aug. 20. Repeated attempts by the government to stop the bears, ranging from setting traps and "aversive conditioning," to the use of helicopters, failed. Running out of patience, and sheep, Mr. Shuler soon had more than he could, well, bear. On the night of Sept. 9, he thought he saw a grizzly running along the yard fence, past his living room window.

He raced barefoot out of the house, wearing only his underwear and toting a rifle. Three bears charged through his flock some 30 feet away. Mr. Shuler fired at them, at which point a fourth bear — tag #53/54 — appeared from the darkness and turned to attack him. Mr. Shuler shot for the throat.

The next day, expecting to find a dead bear, Mr. Shuler instead found a bear still very much alive. It reared up on its haunches and headed toward Mr. Shuler, who, fearing for his life, shot it. After falling down, the bear got back up and was shot again—skidding into the brush within 50 feet of Mr. Shuler.

The Interior Department assessed Mr. Shuler a $7,000 penalty for "taking" bear 1153/54 in violation of the Endangered Species Act. At the hearing, Mountain States Legal Foundation, which is representing Mr. Shuler, argued that taking the bear was permissible under the act's self-defense clause. The Interior Department judge, however, ruled that Mr. Shuler was not actually defending his life but his property — an act that is not permitted under the Endangered Species Act.

In an unprecedented application of human criminal law standards of self-defense to wild animals, the judge held that Mr. Shuler "was blameworthy to some degree in bringing about the occasion for the need to use deadly force." In other words, it was Mr. Shuler's fault: He "purposefully place[d] himself in the zone of imminent danger of a bear attack." The judge did reduce Mr. Shuler's fine to $4,000.

This is not the first time a Montana rancher has challenged the Endangered Species Act on such grounds. Mr. Shuler's original predicament — either kill the bear to protect his property and face criminal charges, or else suffer uncompensated property losses — was identical to that of Richard P. Christy in 1982. Mr. Christy was also fined for killing a grizzly bear in violation of the act. Before bears drove him out of the sheep-ranching business, Mr. Christy appealed the Interior Department's fine. The Ninth Circuit denied his claim that he had suffered an unconstitutional "taking" of his private property on the grounds that the government is not responsible for damages caused by wild animals because it does not own such animals. Mr. Christy appealed to the Supreme Court, which refused lo hear his case.

In dissenting from the court's denial of certiorari, Justice Byron White noted that "A man's right to defend his property has long been recognized at common law." He wrote: "perhaps a government edict barring one from resisting the loss of his property is the constitutional equivalent of taking such property in the first place."

Justice White reasoned that "if a federal statute authorized park rangers to come around at night and take petitioner's livestock to feed the bears, such a governmental action would constitute a 'taking.' " He posited an analogy. "If the government decided (in lieu of the food stamp program) to enact a law barring grocery store owners from 'harassing, harming, or pursuing' people who wish to take food off grocery store shelves without paying for it, such a law might well be suspect under the Fifth Amendment. For similar reasons, the ESA may be suspect as applied in Petitioner's case."

Mr. Shuler's case is on appeal at the Interior Department and there is a slim chance it could eventually reach the Supreme Court. With ,Justice White's retirement, this term, it is unfortunate that he will not Kaye the opportunity to argue these points again should they come before the court. The Endangered Species Act is a classic example of a regulation that has, in the words of Oliver Wendell Holmes, gone "too fat'." It violates what the Supreme Court in 1960 held was one of the principal rationales for the takings clause, namely: "to bar government from forcing. sonic people alone to bear public burdens which, in all justice and fairness, should be borne by the public as a whole."

Today, Americans who live in rural areas constitute a minority. The 90% of Americans who are urbanites may well put a high value on protecting imperiled wildlife, but unlike Mr. Shuler they do not pay the price of providing that wildlife with habitat, much less feeding it with their livestock. This is a burden placed on the rural minority, whose property often is unfairly taken by government to satisfy the aesthetic preferences of the.. urban majority. If the Endangered Species Act is to remain a valid public policy, the public as a whole should bear the cost of the burdens it imposes on the rural minority.